Hamilton v. Dackman

Court of Special Appeals of Maryland

September 4, 2013

RAYMOND V. HAMILTON, JR.v.SANDRA B. DACKMAN, ET AL.

Wright, Kehoe, Nazarian, JJ.

OPINION

Nazarian, J.

The principle seems straightforward enough: a plaintiff who can make a prima facie case that a defendant's misconduct is probably a proximate cause of his injury should have his day in court. Applying this principle to the real-life facts of lead paint cases has often proven challenging, though, especially where the plaintiff lived or spent time in more than one dwelling of potential exposure. Raymond V. Hamilton, Jr. ("Raymond") appeals the summary judgment entered by the Circuit Court for Baltimore City, in favor of the appellees. The circuit court held that Raymond had not produced evidence sufficient to establish a prima facie case of lead exposure at the one property at issue here, and the court declined to allow Raymond to use experts to fill the causal gaps. We affirm via a slightly different analytical path that, to be fair, has been refined in the meantime by the Court of Appeals in Ross v. Housing Authority, 430 Md. 648 (2013).

I. BACKGROUND

Raymond was born on September 20, 1992. Throughout his childhood he lived in Baltimore City with his mother, Flora Vick ("Mother"). According to his answers to interrogatories, Raymond lived at the following houses:[1]

• From Raymond's birth until about February 1993, he lived at 636 North Gilmor Street (the "Gilmor Street property");

• from February 1993 to 1995, he lived at 1926 Harlem Avenue (the "Harlem Avenue property"); and

• from 1995 until 1999, he lived at 2102 Fulton Avenue (the "Fulton Avenue property").

The property at issue in this case is none of the above, but rather 701 Appleton Street (the "Appleton Street property"), the home of Raymond Hamilton, Sr. ("Father"), where Raymond often visited and sometimes stayed overnight.

At some point Raymond's blood-lead levels were tested, and from June 1993 to April 1997, sixteen reports issued by the Kennedy Krieger Institute ("KKI") indicated that Raymond had elevated blood-lead levels. Raymond filed suit on September 28, 2009, alleging that both the Appleton Street and Harlem Avenue properties contained lead-based paint that he ingested in the form of paint chips and dust, causing him to suffer lead poisoning and, ultimately, brain damage. His complaint included claims against numerous defendants (to whom we refer collectively as "Dackman"[2]) sounding in negligence and unfair trade practices. On July 1, 2010, Dackman answered the amended complaint and generally denied liability.[3]

As is frequently true in lead paint cases, discovery focused on whether Raymond's lead exposure could be connected to lead paint present in the properties at which he lived or that he visited. Discovery here revealed more than one alleged source of lead exposure. One was the Appleton Street property, which Raymond's answers to interrogatories described as having chipping, peeling and flaking paint in numerous places:

Prior to [Raymond's] birth there was chipping, peeling and flaking . . . paint in the front door frame, the interior door of the vestibule, floor in the living room, hallway leading from living room to the dining room, window in the dining room, windowsill and baseboards in the kitchen, banister and steps leading from main floor to second floor, windowsills, baseboards and doorframe in the front bedroom, baseboards and floor in the second floor hallway, and the windowsill and baseboards in the second floor bathroom. There was a hole in the wall in the living room that [Raymond] would try to play in/with. [Raymond] was caught with white dust on his hands after playing with the hole. The aforementioned areas of [chipping, peeling and flaking] paint remained throughout the period [Raymond] resided at the subject property. The subject property was never painted during the time [Raymond] resided there.

But although Mother testified that the properties where Raymond lived were in somewhat better condition, at least two also contained peeling paint, and one had lead-based paint both inside and outside:

• The Gilmor Street property: Mother testified at her deposition that the residence was in good condition, and she could not recall any problems with respect to the condition of the paint at that property. She later admitted that she had informed personnel at KKI in June 1994, that the exterior had scaling paint on the exterior windows, doors, and in the front exterior of the house, and that the back porch of the apartment downstairs had chipping paint as well.

• The Harlem Avenue property: Mother testified that while she and Raymond lived there, the property contained chipping paint on the interior and exterior windowsills, doors frames, and exterior of the house. It was inspected for lead at some point and inspection revealed that the property contained "some traces of lead."

• The Fulton Avenue property: described by Mother as in "[p]retty good condition."

In an (undated) affidavit, Mother also sought to rule out other typical sources of lead exposure. Mother did not recall Raymond playing on painted playground equipment, but did recall that the front of the house at the Appleton Street property, where he did occasionally play, was cement. She recounted that he rarely played in the dirt or the back yard at the Appleton Street property, that the water in their homes did not have lead, and that he "did not come in contact with painted toys, lead figures, painted jewelry, old battery casings, glazed pottery from foreign countries, folk medicines, Venetian blinds with lead, fishing weights or gun powder." Mother also stated that Raymond "did not have any family members who worked in home demolition or with naval paint." On the other hand, she stated that at the time he was living at the Appleton Street property and visiting the Harlem Avenue property, Raymond "used to put objects, including paint chips, into his mouth."

Raymond also enlisted three experts to support his claims. First, Christopher J. White, a program manager at Arc Environmental, Inc., prepared a report entitled "Lead-based Paint Survey Report (Exterior Only), " dated February 25, 2011 (the "Arc Report"), that contained the results of a technician's lead testing on eight exterior surfaces (no interior surfaces) of the Appleton Street property on February 18, 2011. The Arc Report described the property as a "vacant two story end of group brick row home, " on which the technician tested "all accessible exterior components." The Arc Report concluded that one of the eight surfaces tested positive for the presence of lead—the rear exterior door transom, which had a reading of 2.6 mg/cm2.4 The Arc Report did not indicate whether the paint on the rear exterior door transom was intact or non-intact.[5]

Raymond's second expert, Robert K. Simon, Ph.D., a chemist, toxicologist and industrial hygienist, opined that the Appleton Street property was a source of Raymond's exposure to lead-based paint. He assumed from the age of the Appleton Street property that it contained lead-based paint (invoking Md. Code Regs. 26.16.01.03(A) (2013)).[6] In his deposition, Dr. Simon acknowledged that the Fulton Avenue property made "some possible contribution" toward Raymond's elevated blood-lead levels from 1995 onward, but testified that the Gilmor Street property was not a significant source of ingestion. He offered no opinion about whether Raymond was exposed to lead-based paint at the Harlem Avenue property because he was not "asked to determine whether that was a substantial contributing source, " although he agreed that "it had some participation in the blood lead levels." When asked to describe the basis for his opinion that the Appleton Street property contained lead-based paint, Dr. Simon admitted that he assumed the presence of lead both there and at the Harlem Avenue property from the properties' age:

[COUNSEL]: . . . And in what way did [the Arc Report] contribute or support your findings?

[DR. SIMON]: None. I mean, the only testing they did was outside. They found one rear exterior door transom to have lead paint. It's 2011. It's way past the time when Raymond lived there. So, it really has no impact whatsoever.

[COUNSEL]: And that's because we don't know when that lead paint could have been applied; is that correct?

[DR. SIMON]: Well, it could be old paint. It wasn't applied theoretically after [19]78. So, apparently, that paint has been there, but it's only one outside sample of door transom. So, again, it's not really significant in terms of Raymond. Most of his time, he's going to be inside, not outside playing in a door transom.

[COUNSEL]: And you didn't see any testimony as to the condition of that door transom, the condition of the paint on the transom, did you?

[DR. SIMON]: No. . . .

* * *

[COUNSEL]: So, could you tell me—do you have any evidence—if you're not relying on the Arc report, . . . what evidence, if any, did you rely upon in concluding that [the Appleton Street property] contained lead-based paint?

[DR. SIMON]: Well, first of all, the house is built in 1920. It's a rental property. And as COMAR 2616 said if it's built before [19]50, Maryland presumes it's lead. . . .

[COUNSEL]: So, in a nutshell, you're assuming that there was lead-based paint at [the Appleton Street property] during the time Raymond lived there; is that correct?

[DR. SIMON]: Correct.

[COUNSEL]: And are you also doing that for [the Harlem Avenue property]?

[DR. SIMON]: As far as I know. I mean, it's described as having—it's described as being in a better condition than [the Appleton Street property] but still having some chipped paint problems. That was described by the Baltimore City Health Department. ...

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